Not a covenant with death

Paul Finkelman paul-finkelman at
Sun Apr 2 21:11:02 PDT 2006

A ban on the slave trade would never have made it through congress and 
would have led to civil war with 15 slaves states leaving the Union.
I think Doug is right that a ban on the trade would have harmed slavery 
but the ban would also have to hav ebeen on interstate migration.
Assuming it could have been passed, and not led to immediate civil war, 
how would it have been enforced in a world with one or two fed judges in 
a state, no FBI and no system of identifcation?  

I guess I am not sure what we are discussing?  Is it that there were 
some tehoretical ways (under the 21st century constitution) to harm 
slavery?  Sure.  That does not make the COnstitution less proslavery; it 
only shows that in a different world, with many amendments, and the 
expericne of civil war, reconstructin, a huge national government, a 
world war, a depression and another world war, constitutional 
understandings have changed.

Douglas Laycock wrote:

> Agreed that Congress could have done nothing to the intrastate slave 
> trade.  And agreed that slavery would have continued.  But most 
> southern states had a huge imbalance in supply and demand -- too much 
> supply in the older states, not enough supply in the newer states.  So 
> a ban on interstate sales would have substantially disrupted the slave 
> economy, with effects that are hard to predict.  But that disruption 
> is precisely why it would have been politically impossible.
> Douglas Laycock
> University of Texas Law School
> 727 E. Dean Keeton St.
> Austin, TX  78705
> 512-232-1341
> 512-471-6988 (fax)
> ------------------------------------------------------------------------
> From: DavidEBernstein at [mailto:DavidEBernstein at]
> Sent: Sun 4/2/2006 7:08 PM
> To: Douglas Laycock; Sanford Levinson; CONLAWPROF at
> Subject: Re: Not a covenant with death
> Even if Congress could ban the interstate slave trade, I don't see how 
> it could have, under any doctrine remotely likely to gain acceptance 
> at that time (or remotely related to the text of the Constitution) 
> could have banned the intrastate slave trade, and that trade would 
> assumedly be enough to keep slavery going.
> In a message dated 4/2/2006 8:01:20 PM Eastern Standard Time, 
> DLaycock at writes:
>     Of course I agree it was politically unthinkable, and for the same
>     reasons that made it politically unthinkable, the Taney Court
>     would probably have struck it down.  But the Taney Court would
>     have been wrong on the Commerce Clause.
>     Douglas Laycock
>     University of Texas Law School
>     727 E. Dean Keeton St.
>     Austin, TX  78705
>     512-232-1341
>     512-471-6988 (fax)
>     ------------------------------------------------------------------------
>     From: Sanford Levinson
>     Sent: Sun 4/2/2006 5:22 PM
>     To: Douglas Laycock; CONLAWPROF at
>     Subject: RE: Not a covenant with death
>     Though the majority opinion in Miln explicitly stated that
>     "persons" couldn't be objects of commerce.  I can't imagine that
>     the Taney Court would have upheld a Commerce Clause-based
>     prohibition of the slave trade.  But, more to the point, it is
>     clear that any such proposal, if enacted, would have invited
>     secession.  Even if it were constitutionally thinkable (about
>     which I remain skeptical), it was politically impossible, at least
>     if one cared about preserving the Union.
>     sandy
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Paul Finkelman
Chapman Distinguished Professor of Law
University of Tulsa College of Law
3120 East 4th Place
Tulsa, OK   74104-3189

918-631-3706 (office)
918-631-2194 (fax)

paul-finkelman at

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